October 13, 2010
The Court’s criminal docket is substantial because Article 6, section 10, of the California Constitution confers original jurisdiction on the Court in habeas corpus proceedings, while Article 6, section 11, confers appellate jurisdiction on the Court when a judgment of death has been imposed. As a result, as Court-watcher Gerald F. Uelman wrote in a recent article for California Lawyer, “This year capital cases consumed 1,369 of the new pages [of the Fourth Series of California Reports], about 46 percent of the court’s total output. . . . Yet the crushing backlog on the death docket was barely diminished: Seventy-seven death appeals and 89 habeas petitions—all fully briefed—remain on the court’s calendar.” Meanwhile, Uelman notes, “prosecutors delivered 29 more capital convictions in 2009.”
The death penalty-related habeas petitions, in particular, are an enormous administrative burden. As discussed in the Court’s own 2010 workload statistics report: “When a petition for writ of habeas corpus is denied without the issuance of an order to show cause, the court does not issue an opinion and instead disposes of the matter by order. Nevertheless, even when no opinion results, the preparation of internal memoranda and the related disposition of death-penalty-related habeas corpus petitions draws heavily upon the court’s resources, because the petitions and records in such cases frequently are very lengthy and complex and are analyzed in internal memoranda that often exceed 75 to 100 pages.”
This heavy burden of criminal cases affects the Court in numerous ways. It might well be a primary cause of the record low number of petitions for review the Court has granted in civil cases, as we discussed in this post. It also might compel the Court once again to resort to depublication of Court of Appeal opinions as a way to manage the development of California law, a topic we discussed here.
In an effort to address this problem, as this press release shows, the Court has “unanimously . . . endorsed a proposal to seek amendment of California Constitution, article VI, section 12, to permit transfer of capital appeals from the Supreme Court to the Courts of Appeal.” But measures to effect such a constitutional amendment have not met with success in the Legislature.
If the Legislature can provide no relief, the Court might have to resort to self help to pare down its criminal workload. This may already be happening. As staff writer Laura Ernde wrote in a recent article in the Daily Journal [subscription required] last month, the Court “ordered capital defense lawyers for convicted killer Harold May Memro to show why their 500-page petition for habeas corpus wasn’t an abuse of the writ process. . . . In re Reno, S124660. The order asked the lawyers to prove that the petition outlined enough facts to support various claims in the petition and that the claims weren’t procedurally barred. It also questioned whether the lawyers were allowed to raise issues related to the defendant’s first trial and conviction, overturned by the Supreme Court in 1985.” Ernde quotes Berkeley criminal defense lawyer Clifford Gardner as suggesting that the Court may want to write an opinion that will assist in weeding out defaulted habeas claims.
But, as we discussed in this post, an upcoming decision of the U.S. Supreme Court could blunt the California Supreme Court’s efforts to get its criminal caseload under control. As mentioned on the always informative SCOTUSblog, the U.S. Supreme Court yesterday heard argument in Harrington v. Richter, Case No. 09-587, in which the Court will consider whether a California Supreme Court decision denying a habeas petition “[is] entitled to deference when challenged in a federal habeas proceeding if the state court issued a summary decision with no reasoning?”
As argued in this amicus brief, if the U.S. Supreme Court in Harrington were to impose uniform federal standards that fail to consider unique state court practices when ruling on habeas petitions, such uniform standards could compel the California Supreme Court to change its practices so that its habeas rulings are not misunderstood by the federal courts. In particular, the Court might have to abandon its practice of issuing “silent denials” of habeas petitions “when a majority does not agree on a basis for decision” and the Court thus “simply denies the petition without any citation or explanation at all.” The amici argue that, “[t]o avoid having the federal courts erroneously treat a silent denial as a merits adjudication, a majority of the justices of the California Supreme Court will have to agree on a basis for decision in each case or specifically explain that a majority could not reach agreement on any single issue . . . . To facilitate this discussion and voting, the court’s criminal central staff will need to recommend a disposition on each separate claim, and the justices will have to vote issue-by-issue.” The amici observe: “[T]he additional work required to reach agreement or state a reason for the truly silent denials would be significant, especially given the state supreme court’s disposition of over 3,400 noncapital habeas cases each year.”
The transcript of yesterday’s U.S. Supreme Court argument in Harrington is available here.